In order to reduce the occupational risk for entrepreneurs and to stimulate the economy and entrepreneurship, the Belgian legislator introduced in 2007 the possibility for the self-employed, who do not work through a company, to legally protect the real estate where they have established their main residence against seizure by certain creditors.
Who can make use of this measures?
The regulations only apply to the self-employed. By this is meant: any natural person who in Belgium is engaged in a professional activity as a main occupation, as a secondary occupation, or as a post-retirement occupation. Anyone who works under an employment contract or is bound by a statute, such as civil servants, does not qualify.
Since 2009, mandataries of a legal entity also fall within the scope of the law. Mandataries include managers, directors, deputy directors, liquidators, commissioners and working partners.
Which properties are protected?
Only the property where the self-employed person has his main residence may be declared ineligible for attachment. Other immovable property such as, for example, a second residence is not eligible for protection.
The main residence is the place where the family or the single person habitually lives and therefore actually resides. This can be determined on the basis of several elements, in particular the place where the person goes after his professional activities, the place where the children go to school, the place of work, energy consumption, telephone charges and the habitual residence of the other members of the family.
If the self-employed person moves, the protection of his former home shall be lost. If the selfemployed person later re-establishes himself at the former address, this does not have the effect of reinstating the protection of this residence.
What if the self employed person also uses his home for professional activities? In that case, there is the so-called 30% rule. If the surface area used for professional activities comprises less than 30% of the total surface area of the property, the entire family home can be declared ineligible for attachment.
If areas of the dwelling are used both privately and professionally, these areas, as a whole, will be considered to be used for professional purposes.
Against which creditors is the principal residence protected?
Firstly, the main residence of the self-employed person can only be protected against professional debts. These are debts related to the professional activity of the self-employed person such as, for example, contractual obligations to suppliers and credit institutions, insurance premiums, VAT and social and fiscal debts insofar as they relate exclusively to the profession of the self-employed person. There is also no protection against debts related to both the private life and the professional activity of the self-employed person.
Secondly, only so-called "posterior debts" are eligible for protection. These are debts that have arisen after the transfer in the mortgage register of the declaration of non-enforcement. The notary will take care of this.
How to apply for protection?
Applying for protection requires a declaration to a notary of your choice. This notarial declaration must be transferred to the mortgage register. It is only from this transfer onwards that the declaration takes effect vis-à-vis the creditors and the self-employed person's principal place of residence is protected.
Last update: 30/04/2020